USA. v. Barnette

Page 803

211 F.3d 803 (4th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AQUILIA MARCIVICCI BARNETTE, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AQUILIA MARCIVICCI BARNETTE, Defendant-Appellant.

No. 98-5 No. 98-11 (CR-97-23-P).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: September 22, 1999.

Decided: May 2, 2000.

Filed: May 9, 2000.

Appeals from the United States District Court for the Western District of North Carolina, at Charlotte.

Robert D. Potter, Senior District Judge.

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[Copyrighted Material Omitted] COUNSEL ARGUED: James Patrick Cooney, III, KENNEDY, COVINGTON, LOBDELL & HICKMAN, L.L.P., Charlotte, North Carolina, for Appellant. Robert John Erickson, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: George V. Laughrun, II, GOODMAN, CARR, NIXON, LAUGHRUN & LEVINE, Charlotte, North Carolina, for Appellant. Mark Calloway, United States Attorney, Robert J. Conrad, Jr., Assistant United States Attorney, Thomas G. Walker, Assistant United States Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Before WIDENER and NIEMEYER, Circuit Judges, and James H. MICHAEL, Jr., Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Widener wrote the opinion in which Judge Niemeyer and Senior Judge Michael joined.

OPINION

WIDENER, Circuit Judge:

Defendant, Aquilia Marcivicci Barnette, appeals his convictions and the district court's order sentencing him to death following his convictions. The government indicted and tried Barnette on 11 counts stemming from the murders of Donald Lee Allen and Robin Williams, three of which are punishable by the death penalty and are pertinent to this appeal: use of a firearm in a carjacking that results in death, 18 U.S.C. § 924(c), (j); commission of a carjacking that results in death, 18 U.S.C. § 2119(3); and use of a firearm while violating the Interstate Domestic Violence Act that results in death, 18 U.S.C. § 924(c), (i). After a three-week trial in January 1998, the jury found Barnette guilty of murdering both Allen and Miss Williams, and following a separate sentencing trial, the jury recommended the death sentence for those crimes, which the court imposed. Barnette presents 11 grounds for appeal before this court, alleging errors in the guilt and sentencing phases of the trial. We address each of these grounds in turn.

I.

Barnette and Miss Williams began dating in 1994. The two moved in together in Roanoke, Virginia in March 1995. A little over a year later, their relationship soured, and Miss Williams broke up with Barnette in April 1996. Barnette then left the apartment they shared in Roanoke and returned to Charlotte, North Carolina, where he lived in his mother's house. The break-up was not amicable, however, and Barnette continued to attempt to resume their relationship.

Miss Williams continued to live in the apartment she had shared with Barnette, but a friend, Benjamin Greene, was staying with her because she was afraid to remain there alone. On April 30, 1996, Miss Williams woke Greene up, telling him "he was here," referring to Barnette. Greene looked out of the window and saw Barnette smashing the windows of Greene's car with a baseball bat. Greene attempted to call the police, but the telephone wires had been cut. Barnette saw Miss Williams in the apartment and began to strike at the windows with the bat. He then threw a fire bomb through a gap he had kicked open in the front door, setting the apartment on fire. Barnette fled the scene after Greene fired shots at him, and Miss Williams and Greene escaped the flames by jumping out of a rear window. Miss Williams was hospitalized with second and third degree burns to her hands and arms. Miss Williams identified Barnette to the Roanoke police, who issued a warrant for his arrest and notified the Charlotte Police Department. The Charlotte police, however, did not arrest Barnette. On May 20, 1996, Barnette purchased a 12-gauge shotgun in Charlotte using his brother's, Mario Vonkeith Barnette's, Virginia driver's license. He returned the gun the next day and exchanged it for a semiautomatic shotgun. He sawed off the stock and barrel of the new gun and taped a flashlight to its barrel. On June 21, 1996, Barnette took the gun and walked from his mother's house to the nearby intersection of Billy Graham Parkway and Morris Field Road. Donald Allen stopped his blue Honda Prelude at that intersection shortly after midnight. Barnette approached Allen's car with the shotgun and ordered Allen to get out of the car. Allen complied and also threw down his wallet after Barnette demanded it. Barnette then forced Allen to walk at gunpoint to a drainage ditch across the road. After reaching the ditch, Barnette shot Allen three times in the back and left his body in the ditch. Barnette took Allen's wallet and car and drove to Bertha Williams', Robin Williams' mother's, house in Roanoke, Virginia. Miss Williams had been living with her mother since the firebombing incident.

After arriving at Mrs. Williams' house, Barnette went into the backyard and cut the home's telephone wires. He then attempted to enter the home though the side kitchen door, but after finding that it was locked, he fired the shotgun into the door and kicked it in. Mrs. Williams was inside the house holding her eight-month-old granddaughter when Barnette entered the house. Mrs. Williams told Miss Williams to run, and Miss Williams ran out the front door. Barnette entered the house, confronted Mrs. Williams, and followed Miss Williams out the front door, chasing her across the street. A neighbor, Sonji Hill, was standing in her doorway, calling the police, when Barnette ran by. Barnette saw her making the call, and from 50 feet away, he pointed the shotgun at her and told her to hang the phone up or he would shoot her. Miss Hill hung up the phone and retreated into her apartment, where she called the police again.

Miss Williams fell down as she was running away from Barnette, and he caught up with her, grabbed her by the hair, and dragged her back to her mother's house. He told Miss Williams that he planned on killing her and himself. Mrs. Williams came out of the house as they returned, and Miss Williams broke free from Barnette and went with her mother toward the house. Barnette then shot Miss Williams twice. He fired the first shot from 10 to 12 feet away, hitting Miss Williams in the side. The second shot, fired from four to five feet away, hit her in the back. When Barnette fired both shots, Mrs. Williams was close enough to her daughter to touch her. Miss Williams died from these injuries.

Barnette left the scene of the murder in Allen's car, driving to Knoxville, Tennessee where he stole new license plates for the car. He then drove to Charlotte, North Carolina where he abandoned the car in a shopping center parking lot on June 24, 1996. Police officers discovered the car that night and found the shotgun Barnette used in the murders in a nearby dumpster. Barnette turned himself in to the police on June 25, 1996 at his mother's house. After his arrest and Miranda warnings, Barnette took the police to the scene of Allen's murder and showed them where to find the body. Barnette later confessed to the two murders and the carjacking. No issue is made of the admissibility of the confession.

After Barnette's arrest, the United States asserted jurisdiction over the case and indicted him on 11 counts stemming from the murders and firebombing.¹ The government served its notice of consideration for the death penalty on August 7, 1997, and the guilt phase of the trial began on January 21, 1998. No witnesses at trial disputed the facts of the crimes, and the jury found Barnette guilty on all 11 counts of the indictment.

The trial then moved to the sentencing phase. The government presented two statutory aggravating factors and three non-statutory aggravating factors supporting the death sentence for Allen's murder² and two statutory aggravating factors and three non-statutory aggravating factors supporting imposition of the death sentence for Miss Williams' murder.³ The government called several witnesses who testified about Barnette's past violent actions. Four members of the Allen family and three members of the Williams family also testified about the effect the killings had on them. In consideration of mitigation of punishment, the defense presented witnesses who described Barnette's difficult childhood, explained that he would do well in the structured environment of prison, and indicated he had substantial psychological problems that contributed to his violent actions. This mitigating testimony was given by 12 of Barnette's friends and family members and three experts who testified that Barnette would not be a future danger in prison. Dr. Mark Cunningham presented the most detailed testimony on future dangerousness, providing a risk assessment of Barnette and concluding that there was little likelihood Barnette would commit future violent acts in prison.

In rebuttal, the government called five more witnesses, including Dr. Scott Duncan. Dr. Duncan contested Dr. Cunningham's conclusion that Barnette would not be a future danger in prison based on three factors, the Psychopathy Checklist Revised,⁴ research on predicting future dangerousness, and an actuarial analysis comparing Barnette to groups of people with characteristics similar to him. Dr. Duncan found that Barnette was likely to be violent in the future. He testified that, in his opinion, Barnette was a psychopath. Barnette then asked to recall his risk assessment expert, Dr. Cunningham, to rebut Dr. Duncan's opinion that Barnette was a psychopath, and related testimony...